Compensation for Lost Wages Due to Discrimination in the Workplace

If employers in BC breach their duty to accommodate disabled employees in the workplace, they may be answerable to the discrimination laws in the province.

Significant “injury to dignity” damages are being awarded to employees in BC as well as compensation for lost wages because of such breaches.

The Human Rights Tribunal has the power to clamp down strongly on employers without the necessary disability management programs in place.

This trend has been amply demonstrated by recent lawsuits and appellate court decisions, including one which we summarize below.

Case Study: UBC V Kelly, 2016 BCCA 271

The BC Court of Appeal recently upheld the highest-ever award for injury to dignity from the BC Human Rights Tribunal: an award of $75,000 to Dr. Kelly to compensate him for injury to dignity following his removal from the University of British Columbia’s Medical Residency Program.

He suffered from attention deficit hyperactivity disorder (“ADHD”) and a non-verbal learning disorder (“NVLD”). After experiencing significant difficulties in completing UBC’s Program, the UBC attempted to modify the program for him but soon determined that Dr. Kelly lacked the skills required to complete the program,

When he was removed from the program, Dr. Kelly initiated legal proceedings against UBC, alleging human rights breaches concerning discrimination in employment.

Despite the UBC arguing that it had modified the Program as much as possible for Dr. Kelly and that further modifications would have resulted in fundamental and costly program changes, the Human Rights Tribunal ruled in favour of Dr. Kelly.

The decision stemmed from the finding that the UBC should have done more to modify the program and that Dr. Kelly’s disabilities were a factor in the decision to terminate his participation — a breach of the duty to accommodate those disabilities to the point of undue hardship.

The Tribunal ordered Dr. Kelly’s reinstatement to the program, compensation for loss of wages and $75,000 in compensation for the injury to his “dignity, feelings, and self-respect”.

When the Supreme Court of Canada was asked to review the Tribunal’s decision, it was upheld but the award for injury to dignity was set aside because the Court found it to be an arbitrary number not based on precedent.

When both parties appealed the decision, the BC Court of Appeal upheld the decisions of the Tribunal and the Supreme Court regarding discrimination and loss of wages, while also reinstating the $75,000 award for injury to dignity.

Why are “injury to dignity damages” awarded?

Damages are often awarded by the BC Human Rights Tribunal as compensation for lost wages that may be incurred by the employee. Depending on the findings of the Tribunal, the employer may also be required to offer the employee their position back.

This is to make the employee “whole” again, leaving them in the same position financially that they would have been without the discrimination.

But the law recognizes that being discriminated against isn’t just a financial matter. An employee who has been discriminated against may also suffer simply from experiencing the discrimination, i.e., an injury to dignity due to the violation of a human right.

In such cases, injury to dignity damages may be awarded to compensate for the harm and suffering caused by the act of discrimination. The full legal terminology is “injury to dignity, feelings and self-respect”.

How does the Human Rights Tribunal calculate lost wages?

After a hearing with the Human Rights Tribunal, the panel will consider how much compensation is due for lost wages.

Lost wages are calculated by adding up the amount the complainant would have earned and subtracting the amount that he/she did earn.

Before making this calculation, the Tribunal will consider the flowing questions

• Did the complainant lose work because of the discrimination – including being fired from a job, losing shifts, being denied a raise in pay or not being given a job?
• If so, how much would the complainant have earned if there was no discrimination?
• Did the complainant try to find other work to reduce their lost wages (“mitigation”)?
• How much did the complainant earn after the discrimination?

The amount can be adjusted due to circumstances. For instance, if the employee was discriminated against when applying for a job but only had a 50/50 chance of getting the job, the lost wages calculation can be reduced accordingly.

What lost wage evidence must a complainant provide in BC?

A complainant in a discrimination case must provide evidence about the lost wages suffered and the steps that they took afterwards, including:

• Documents to show how much they were earning when the discrimination occurred, e.g., pay stubs or income tax returns.
• Evidence that they took reasonable steps to find other work to reduce the impact of the lost wages (“mitigation”), such as a list of places they applied to with copies of the applications.

If the complainant was able to find work after the discrimination occurred, he/she must present documents showing how much was earned, such as pay stubs or income tax returns.

If the rate of pay in the new job was lower than in their previous one, the employee can claim for the difference in wages.

If no mitigation steps were taken, the complainant must explain why (e.g., they were unable to apply for jobs or the job search process was too difficult).

What evidence must the respondent provide?

In discrimination cases, the respondent to the allegations may challenge the complainant’s evidence.

For instance, the employer may argue that the employee’s wage loss was not due to discrimination but because of one of the following:

• The respondent would have lost their job anyway (for non-discriminatory reasons)
• The complainant could not have worked because of an illness or disability

Evidence must be provided to support these contentions. If the respondent claims that the complainant could have done more to reduce wage losses, he/she must also provide supporting evidence to the Tribunal.

Is wage loss limited to a notice period?

While The Employment Standards Act may require an employer to pay a certain amount of wages in lieu of “reasonable notice” of a termination, the Human Rights Code allows a complainant to claim all the wages lost due to discrimination.

However, discrimination cases can be complex and it is unwise to fight them alone.

At Taylor Janis, LLP, we can protect your employee rights and support you in your discrimination claim.

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